[The following is an e-mail response by a former student to a previous post about the recent Cherokee Nation vote to expel the descendants of their former slaves from the tribe]

Hi Professor Balkin,

I saw your blog about the Cherokee Nation vote. Thanks for writing what you did. I enjoyed reading it, and I'm glad people are noticing what's going on and beginning to talk about it.

I do want to say, however, that I think the issue is being slightly misconstrued by the national media. The financial motivations are, I think, mostly red herrings. There is a perception among portions of the American public, which seems to color a lot of the media commentary (whether because they believe it or themselves or are simply not understanding the incorrect assumptions coloring some of the opinions they report, I do not know) that because gaming revenues have made some Indian tribes rich that they are, by extension, making individual members of Indian tribes wealthy also. In almost every case, this assumption is not correct. The Indian Gaming Regulatory Act (IGRA), 25 U.S.C.§2701, strictly limits the spending of gaming revenues. Individual cash payments to tribe members are allowed only with the approval of the Secretary of the Interior and only after proving that sufficient money has been allocated to meet the health, education and welfare needs of the collective group. According to the National Indian Gaming Association, only 73 out of 563 federally recognized Indian tribes have Revenue Allocation Plans that provide for individual per capita payments to tribe members and because the IGRA allows for per capita cash payments only after collective needs have been taken care of, these cash disbursement plans tend are found disproportionately among tribes with relatively few members. Thus, the vast majority of Native Americans enrolled in federally recognized tribes in the United States, including those enrolled in the Cherokee Nation, receive no cash disbursements of gaming revenue. They are further unlikely, given the size and location of their tribe, to ever receive such payments, no matter how many people they disenroll.

Most of the individual benefits to tribe members from gaming revenue come in the form of health and welfare benefits—things like blood pressure screening, drug and alcohol rehabilitation, eyeglass for students and hearing aids for the elderly. This sounds very valuable, and I do not want to understate its importance to many people, but it is important to realize that the services provided mostly remedial care for people who without it would have no health insurance and who would likely depend on public hospitals or on welfare. Most people who can get private or employer-sponsored health insurance do, and the vast majority of the 250,000 enrolled tribe members—Freedmen included—receive no direct benefits whatsoever.

Add to all of this the fact that Friday's vote was just the very latest step in an expulsion attempt that began in 1975—long before gaming revenue was ever thought of—and you get a clearer picture of the problems of reducing the struggle to a fight about money. In my opinion, the "protecting financial resources" argument is and always has been code language for "keeping out the blacks" in much the same way that "preserving Southern heritage" was for segregationist Southern whites. It is what people feel it's acceptable to say in public given that we have reached a point in our nation's history where overt public displays of racism are generally frowned upon. However, you don't have to push hard to see the racial undertones. Chief Smith loves to point out, for example, that the Freedman were "compensated" with land allotments "unlike freed slaves in the South after the Civil War," the implication being, I guess, that since black Indians already got more than any other black people, they should just be thankful for (the very little) they got and stop asking for more. Read for yourself Chief Smith's "summary" of the Freedman debate, available here in the "Chief's Corner": http://www.cherokee.org/home.aspx?section=chief&id=/aoDJcgHYwk=

So what's going on? Many argue that the current Cherokee government is of tenuous legal and historical legitimacy. There is ongoing debate about whether the reconsitution of the Cherokee Nation, which did not take place in accordance with the provisions of Oklahome Indian Welfare Act of 1936 (OIWA), is legitimate even in its reconstitution. However, setting that aside, o ne of the few things the national media has gotten right is that the Dawes Rolls were illegitimate, replete with error, and corrupt. Many, many Cherokee—some claim it was more often than not the full-blood, relatively less assimilated and disinclined to assimilate Cherokees—refused to register. None of my Cherokee ancestors (and I have many) appear on the Dawes Rolls. Reasons for refusal varied. Some distrusted the government. Some didn't want to disaggregate the land, or feared that the lists might be used to persecute them. Whatever the reason, the fact that many Cherokee are unregistered is a point of little dispute. The Cherokee Nation admits that there are many individuals living in Oklahoma who are Cherokee but who are not citizens of the Cherokee Nation because they can prove no Dawes ancestry. In addition, many of the Freedman had as much or more Cherokee blood than the "by blood" registrees, but racist census takers listed them as Freedmen (i.e. without Cherokee blood) simply because they "looked black." By contrast, many of the tribal representatives in charge of assisting with the registration were themselves relatively assimilated and/or mostly white.

Incentives for assimilated, mixed-race Cherokees to agree to allotment were also higher than for the unassimilated. Not only did many of the unassimilated Cherokees believe that apportionment was contrary to Cherokee culture, but rules regarding post-allotment land transfers made it relatively easy for mostly white Cherokee to sell their land to white settlers immediately while land apportioned to full-blood Cherokees could not be as easily sold. These racist land transfer rules also provided incentive for Dawes Commission members to underestimate systematically the blood quantum of registrees and to deny "by blood" designation to as many people as possible since denying a "by blood" designation to mixed-race Cherokee of African descent or meant that his allotment was immediately available for resale. Cherokees who refused, out of fear or out of principle, to register were effectively—and permanently—excommunicated from the tribe. Still today, there remains no path to Cherokee Nation citizenship outside of the Dawes Rolls. No matter how much archival evidence, including government documents, a person can present proving non-Dawes Cherokee heritage, there is no way of regaining tribal membership for descendents of unregistered Cherokee. This is true for people even of collateral Dawes descent. Even if a prospective tribal applicant shows, for example, that although her grandfather is not listed on the rolls, her grandfather's brother—child of the same parents—is listed, she will be denied membership.

Thus at the dawn of the 20th century, the Dawes Rolls established parameters for Cherokee identity that included many white and mostly white Southerners while excluding many unassimilated and assimilation opposed Cherokee. 300 years of contact with European settlers had left their mark on the Cherokee culture. In particular, the religion imported by Christian missionaries had acquired a remarkable influence within Cherokee cultural identity. Integrated into native culture were Southern evangelical religious traditions that had historically not been friendly to the idea of racial integration. Census data indicates that many more of the Dawes-listed Cherokee were inclined to self-identify as white than otherwise, and the tribe was plagued with many of the various prejudices common to the non-Indian South of the same period.

In contrast to the situation in the rest of the South, however, there was little motive or opportunity for the non-Freedmen Cherokee to act in any official capacity on their prejudices because the Dawes allotments effectively abolished tribal government. Chiefs were appointed by the President of the United States, and there was no recognized right to self-governance. It wasn't until 1975 that the Cherokee were able to form their first post-Dawes Constitution and elected their first chief, and they wasted no time in drafting, in the very first instance, a Constitution that (they believed) excluded the Freedmen from membership. Much wrangling ensued until the JAT declared the Freedmen not excluded because of some possibly ambiguous wording in the text of teh Constitution, but the point is that the (white and mostly-white) Cherokee never accepted the legitimacy of the Freedman at any point in history, dating back to 1866. This isn't about casino money. It's about race. Race, and racism imported into the tribe by white Southerners who were later forced at gunpoint to change their own ways but whose historical bad habits are now nurtured by the Cherokee under the cloak of sovereignty while those of us who care both about civil rights and about tribal sovereignty are left in a tough position.

Lastly, there's a pretty serious representational legitimacy question with respect to this election. The Oklahoma Cherokee have ~250,000 members and are a nation ostensibly with universal adult suffrage, yet fewer than 10,000 people voted in the special election. Even given the huge margin of victory, the fact remains that only about 6,700 Cherokee voted Friday for expulsion. Granted, turnout in tribal elections is always poor, but I am still surprised that national news organizations are willing to generalize so widely about "the Cherokee people" on the basis of such a small sample. Fewer than 7,000 people, or 3% of the total electorate, actually voted to disenroll the Freedmen. General apathy and/or lack of involvement in tribal affairs is the most commonly cited reason for habitually low voter turnout in elections. If true, it is difficult to argue that it is the Freedmen—many of whom have been fighting vigorously for over 30 years to be acknowledged as legitimate by their community—whose presence threatens to dissipate "Cherokee culture.

Sadly, the tribal race politics do not stop with the Cherokee. Each of the five so-called "Civilized Tribes" has made efforts to exclude the Freedmen. The Seminole, after voting their Freedmen out in 2000, had their funds cut off by the US government and were forced to take them back. I suspect this is what will happen to the Cherokee as well. So in the end, the real "winners" in this may be the Chickasaw, Choctaw, and Muscogee (Creek) Nations, each of whom, after the ambiguous Cherokee Constitution of 1975, had the foresight to disenfranchise more explicitly their Freedmen in their original reconstituted Constitutions, thus eliminating the need to draw national attention to themselves by doing it by special election.